TMI Blog2003 (1) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... ny the exemption enhancing the value of the machine for assessment and demanded the duty consequently due, imposed penalty on the appellant and the Managing Director. These two have appealed this order. 2. We shall first consider the eligibility of the goods to exemption contained in Notification 59/86. The relevant Entry 13 of the table to the notification partially exempts from duty refrigerators and refrigerating equipment including freezing equipment (electrical and others) other than household type refrigerator . The Commissioner has denied the exemption to the ice-cream making machine on the ground that they are not simple refrigerators. He says ...machines imported did not merely carry out the function of refrigeration. They are not simple refrigerator or refrigerating equipment or freezer, they are much more than that. They are the machine which had a refrigeration base which in addition are built to carry out functions like mixing, slashing, mixing of different colour and flavour and having a mechanism for dispensing. He finds that ice-cream making machine are not understood as a refrigeration machine in the common parlance. This is the argument that the departmental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad declared the value of the ice-cream machine totalling Rs. 998159/-. The show cause notice alleged that the value of these goods was Rs. 5846492/-. The notice worked out the duty demandable by working out exemption contained in the Notification to Rs. 21962347/-. Based on the duty payable, the difference between the value of Rs. 58.46 lakhs approx. claimed by the department and that declared of Rs. 9.89 lakhs by the appellant at the rate of 55% would work out to 32.15 lakhs approx. This is the rate of duty that is available by applying the exemption which we have held the goods are entitled. 5. It is a translation to the Indian of the Italian customs report that has been produced before us and was made available to the appellant. This report which is entitled Statement of the survey data by three Italian customs officers, and is signed by Gino Cocchi, Managing Director of Carpigiani, makes the following points. Diary Den is the sole distributor of Carpigiani SRL operating exclusively on Indian territory. The machinery exported to India in conformity with the national and international norms in matters of safety and hygiene and have been manufactured as a special design produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price charged for the sales in India were consistent with those charged for other foreign buyers for the same machinery. 6. The department concludes from this that the invoices which were enclosed to the report of the Italian customs represented the price that the appellant paid to the Italian supplier for the goods and therefore formed the assessable value. 7. The contention of the counsel for the appellant with regard to this are as follows. Photocopies of the invoices that were enclosed to the Italian customs report have not been authenticated. The requirement of sub-section (6) of Section 78 with regard to the manner in which documents have to be being proven have not been complied with. The presumption provided under Section 139 of the Customs Act, 1962 with regard to the truth of contents of these documents cannot be presumed. The judgment of the Supreme Court in Collector of Customs v. East Punjab Traders - 1997 (89) E.L.T. 11 and decisions of the Tribunal are relied in support. It is further contended that the report of the Italian customs itself contains particulars which are clearly incorrect. There is no evidence pointing to the appointment of Diary Den as a sole di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... photocopies of six invoices bearing the signature of the customs officers and of employee of Carpigiani lead us to conclude that these were the same invoices. These are the same copies that form the enclosure to the report of Italian customs. The presumption available in sub-clauses (a) and (b) of clause (2) in Section 139 would extend to these documents. The question that now remains is the truth of these documents. The report of the Italian customs says that the amount shown in these invoices are duly settled outcomes . This in effect is what Cocchi has said. At the same time, however, it is not possible to overlook the fact that Cocchi Gino had expressed some reservations in the report. The report specifically mentions that Gino had enclosed a note which are enclosed for you the present statement . This note has not been produced. In the light of the fact that it is referred to in the Italian customs report it forms an integral part of that report and should have been made available to the appellant. Alternatively, Gino should have been made available for cross-examination. Further, the affidavit which Gino affirmed subsequently to the report in which he has categorically sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant filed in the Customs. If the contents of the reports received from Italian customs has to be accepted, it would lead to the conclusion that the value that was declared by the importer is far lower than the price that was charged by the Italian suppliers. Thus the question before us is the acceptability of the report and its enclosures. 13. The following objections have been raised by the counsel for the appellant against the acceptance of these documents. It is not known how the department procured the document. There is no indication that they were received from the High Commission of India in London or through any other channel. The appellants had been informed by the Custom House in Mumbai that copies of relevant invoices and insurance enclosed to the report were handed over to A.L. Sharma, the appellant s representative. Sharma was not given copies of the letters received from the Italian customs. Therefore, it is difficult to accept the report as authentic. A reading of the report shows that the Italian custom officers visited the premises of Carpigiani and gathered information from that company. Paragraph three of the report shows that photocopies are attached to inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The documents enclosed to it are also photocopies again authenticated by the initials of these officials. The counsel for the appellant did not dispute that the report was in fact sent by officials of the Italian customs. The fact that the precise authority of the Indian Government to whom this document was handed over by the Italian customs has not been established should not by itself be a bar against considering it to be authentic. Once it is accepted and it is certified in the light of the signatures that the report was prepared by the officials of Italian customs, and the report is tendered in evidence by an agency of the Government of India, it is a matter of details as to the various channels through whom it passed, and as we have noted, there is no serious challenge to the fact that the report was in fact drawn up by the Italian customs. The fact, which appears evident, that the officials of the Italian customs visited the premises of Carpigiani does not by itself render the documents accompanying that document invalid or unacceptable. It is not possible to say therefrom that the invoices and other documents were recovered from the premises of Carpigiani and not from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
